And, at least to date, none of the states that collect a state estate tax have introduced legislation to make their state estate tax exemption portable between married couples, so estate tax planning in states that collect a state estate tax still remains critical.
The gap between the federal and state estate tax exemptions is most significant in New Jersey, where the state estate tax exemption is only $675,000 (gap = $4,593,000), and the smallest in Illinois, where the state estate tax exemption is $4,000,000 (gap = $1,250,000). Thanks to indexing for inflation at both the state and federal levels, Rhode Island's gap in 2013 is an odd $4,339,275, while in the following states and the District of Columbia the gap is $4,250,000 - Maryland, Massachusetts, Minnesota, New York and Oregon. That leaves Connecticut, Maine and Washington, where the gap is $3,250,000, Tennessee, where the gap is $4,000,000, and Vermont, where the gap is $2,500,000. (Note that while Delaware, Hawaii and North Carolina currently collect a state estate tax, the exemption in each of these states is equal to the federal exemption of $5,250,000, which means that this is not a gap in these three states.)
So where am I going with all of this? With the gap between the state estate tax exemption and federal estate tax exemption currently ranging from between $1,250,000 and $4,593,000, married couples who live in states with a gap still need AB Trust planning in order to minimize their state estate tax bill. But that's not all that they can do - in many of the states with a gap, married couples can use what is referred to as "ABC Trust planning," "gap trust planning," or "swing trust planning," to completely eliminate the payment of both state estate taxes and federal estate taxes until the second spouse dies.
So how does ABC Trust planning work? In the states that allow for this type of planning, a state QTIP election can be made over a portion of the property that is also exempt from the federal estate tax. For example, in Maryland, where the 2013 state estate tax exemption is only $1,000,000 and a state QTIP election is authorized by statute, ABC Trust planning would work as follows for an estate valued at $7,000,000:
- $1,000,000 million will go into the B Trust = state estate tax exemption, exempt for both state and federal purposes
- $4,250,000 will go into the C Trust = state only QTIP election is made for this QTIP Trust so that it is exempt for state purposes, also exempt for federal purposes
- $1,750,000 will go into the A Trust - state and federal QTIP elections are made for this QTIP Trust, so it is exempt for state and federal purposes
Currently the states that allow for ABC Trust planning are as follows:
- Illinois
- Maine
- Maryland
- Massachusetts
- Ohio - through December 31, 2012, since Ohio's estate tax was repealed on January 1, 2013
- Oregon
- Rhode Island
- Tennessee
- Washington
So what should you do if you are married and you live in one of the states listed above and your estate plan is more than a few years old or, for shame, you don't have an estate plan? Consult with an estate planning attorney in your state to determine if you need to make ABC Trust planning a part of your plan.
And what should you do if you are married and you live in one of the states that collects a state estate tax but you can't use ABC Trust planning? Consult with an estate planning attorney in your state to discuss your options and determine which is right for you and your family.